The Idea of Justice – An Introduction[1]
Although “justice” is sometimes used as a synonym for
“law” or “lawfulness,” it has a broader sense, closer to “fairness” in recent
periods, such as the latter half of the 20th century, which is the
focus of our course of study. This is
principally, but not exclusively owing to the now-famous work of John Rawls,
who described it as such in his work A Theory of Justice as amplified
and further explained in his more recent work, Political Liberalism. A a briefer, somewhat refined version of his Theory
is in his last major work, Justice As Fairness: A Restatement,
which is one of the basic texts for the Course “Justice in contemporary
Questions of justice, according to David Hume, John Stuart
Mill and others, presuppose conflicts of interest; there would be no point in
talking about justice, according to Hume, but for the limitations of human
benevolence and the competition for scarce goods. If we lived in paradise, where all goods
exist in superabundance, justice would never be an issue, in other words. Justice further presupposes individuals
pressing claims and justifying them by rules or standards, which we take to be
or at least argue, are, more or less universal.
This distinguishes justice from charity, benevolence or generosity. No one can claim alms or gifts as a
right. However, although that account of
justice may only be applicable to distributive
justice, where the problem is to allocate benefits, it is not so obviously true
of corrective (or retributive) justice. For example, it would be considered a
farfetched argument to claim that a criminal trial is actually a conflict
between an accused man’s interest in being let alone (extreme liberty) and the
community’s interests in punishing him for something that is claimed to have
transgressed one of society’s strict rules of conduct.
However, criminal and civil justice do have something in
common with distribution of goods in society.
They may involve overriding a claim by one individual in favor of
another and treating people similarly situated in different fashions. To function in a free, democratic society
such as we believe the U.S. to be, all of this presupposes general principles
by which such distinctions are regulated and justified. Much of our work will be to address the
challenges to our system by current domestic and foreign crises, and to stress
the importance of our rhetoric about justice on the substance of what counts
for justice in our various systems of delivery.
Who gets what and why has much to do with how we talk about the issues.
We can usefully begin our study by harking back to the
time of Aristotle, in 5th Century BC Athens. His analysis of Justice begins with the key
to its meaning at the level of the specific act or decision to act in any way
that affects the interests of others. He
maintained that justice consists in treating equals equally and unequals
unequally, but in proportion to their relevant differences. These ideas led first to the notion of
impartiality. In the law, the scrupulous
judge is to consider only those aspects of the case that are relevant in
law. Legal justice is no respecter of
persons or status, unless those factors need to be considered in order to make
a decision. For example, the wealth of a
party may be a factor in a case involving taxation; her status may be important in a case
involving maternity matters or, say, as a member of a legislative body claiming
immunity from the libel and slander laws
while on the floor of a deliberative body.
The idea of impartiality as a general rule implies a duty
on a party who would challenge it to show why different treatment of apparent
equals can be justified. Thus in the
early school segregation cases, the school boards defending their segregated
schools had the burden of showing that “separate but equal” policy stood the
test of different treatment of otherwise equal persons on the grounds of racial
harmony, among others. When that burden
failed because the Supreme Court found that segregation was “inherently” unequal
and therefore separate treatment could never be equal under any circumstances,
lawful segregation was dead. De facto
segregation, imposed by social and economic forces stood outside the law and
re-imposed segregated schools in the inner cities because of “white flight” to
the affluent suburbs. This movement had
the effect, among many others, of sharpening the debate about the fairness of
economic distribution in a “free market” society. The debate is ongoing, and shows no sign of
solution. One example, providing ample
material for analysis, is the effects of welfare reform undertaken by the
federal and state governments in the last five years during which the U.S.
experienced the most vigorous economic expansion in its modern history, but now
coming to fruition when unemployment rates have once again begun to soar as the
country slides into a much deeper recession than expected by the normal
business cycle.
In criminal justice, the debate has been most heatedly
centered in recent decades over the return of the nation to lawful imposition
of the death penalty and the near-draconian sentencing guidelines to give
effect to a rigorous “war on drugs” in our society. Most recently, as a result of the
catastrophic attacks on the World Trade Center in New York and the Pentagon
Building in Washington, D.C., the inquisitorial military tribunals authorized
by Executive Order of the President have already raised serious concerns on the
part of many lawyers and law enforcement officials about the erosion of rights
of accused to counsel, fair trial procedures and access to appellate
process. Interestingly, the Executive
Order is seen by many conservative enforcement officials as casting doubt upon
the adequacy of existing systems of the criminal judicial process.
Does our social contract impose upon each of us an
obligation to act justly? For a judge,
of course, this is part of her job.
Deciding issues and cases according to law means taking account of only
those matters deemed significant under the law and its processes. But more broadly, the question is whether we
are required to make arguments in support of our actions, both planned and
already taken, to justify them to others generally, or at least to those to
whom we are accountable for our decisions and actions.
When considering the matter of justification as a key
element of the process of decision making for a fair and equitable result,
whether we speak of distributive or retributive justice, we must take into
account the role of “good reasons” and “critical thought” as a necessary, but
not always sufficient explanation.
Critical thinking has always been subsumed by careful
analysis and explanation, but it has recently become a trendy academic affair,
often charged with carrying more weight than it can bear. But approached with a utilitarian attitude,
the process of critical thought can give the “good reasons” approach to
decision making and justification a better name than if often enjoys in
philosophical circles.
The idea of giving good reasons to support or justify
decisions and actions that affect the interests of others would seem obvious,
especially if the expressions of them take the form of telling someone what to
do in a given situation.
Of the most authoritative philosophers writing on this
subject are Stephen Toulmin and Kurt Baier.
Baier and other “classic” utilitarians argue that a moral rule of
decision is justified if it tends to produce greater happiness than any
alternative rule, but Toulmin favors a negative formulation, to wit, in
deciding among alternative courses of action, that rule is best that most
likely leads to the least amount of avoidable suffering all around. Toulmin’s argument is that it is very
difficult to determine what makes people happy or what they want, but it is
easier to decide what causes or might cause suffering and that is less the
function of morality to tell people what the good life is than to tell them
what not to do so that their interests, including their differing conceptions
of the good life and including justice, can be realized to the maximum extent.
Toulmin, in his 1940’s book The Place of Reason in Ethics,
says that the function of morality is to adjudicate conflicting interests and to
harmonize desires (that is, to moderate our impulses and adjust our demands so
as to reconcile them with other members of the communities in which we
participate, in such a way that everyone can have as much of what he or she
wants. Clearly then, under the
previous simple definitions of justice, this methodology applies to sorting out
both distributive and retributive forms of justice.
Clear thinking about these problems is not easy, and we
will spend time revisiting some of the principles of critical thinking and
reminding ourselves that although we must recognize the difficulties human
beings have in this area, so starkly portrayed by David Hume in his description
of how human desires trump reason, we must nevertheless try to reach reasoned
impartial judgments about such matters or simply give in to a moral hedonism
that ultimately is unsatisfying to everyone.
It is in this last area that John Rawls and virtue
ethicists such as Phillipa Foot and Annette Baier have made such a major
contribution in ameliorating the harshness of a bleak utilitarian world and introduced
the ideas of natural justice as fairness and moderation. Building a conception of social contract
based on these principles, accepted as the kind of society built on universal
rules no one could reasonably reject has been the project of Thomas Scanlon in
his latest work, What We Owe to Each Other.
Finally, in this brief introductions, and to close the
circle on the notions of justice that will occupy us during this course, I
would call your attention to claims of justice that extend beyond the shores of
our country to the vast reaches of remote areas, where justice often seems to
be in the hands of some strange gods.
Michael Ignatieff in his works The Needs of Strangers and Human
Rights will offer some good reasons why our ideas of what we owe to
each other should extend to peoples we do not ordinarily think of as entitled
to the benefits of our social contract.
This would also include those persons who come to our country legally,
but have not yet achieved or sought citizenship.
To return to a more detailed discussion of the ideas of
justice, we must return to the question:
is there a general duty to act justly?
Rawls argues that we are rationally committed to acting justly by our
very position as persons engaged with others in joint practices designed to
promote common or complementary interests.
This is consistent with the ideas of social contract alluded to
above. We cannot, for example,
reasonably expect other people to respect our interests unless we are prepared
to respect theirs, and, as other thinkers have put it, a person has grounds for
complaint if, should you refuse to do something he asks you to do, he can judge
that you would have made the same request in his place. The duty of justice, or fair dealing,
according to Rawls, would emerge from the reciprocal recognition by a community
of rational egoists that they had similar ( and competing) interests and that
no one could count on getting her way against all the rest. (Query: Would it follow, therefore, that a
state powerful enough to get its way against all other states would have no
obligation to deal justly with them?
This is in many cases the situation the U.S. finds itself today.)
Referring to a key component of justice in all systems,
impartiality, it would also seem that reciprocity is a closely related
factor. Treating others as you would
want them to treat you, giving benefits in return for some you desire for
yourself, are common expressions of the mutuality that justice and fairness
seem to rest. From this follow notions
such as fair wages, just prices and fair exchange – called “commutative
justice” by Aristotle – as opposed to profiteering and exploitation. Establishing fair prices in a market economy
is often difficult when trying also to comply with standards of fairness.
In the criminal law context, justice as reciprocity is
often believed to require returning evil for evil, as much as good for
good. The lex talionis extending at
least as far back in time as the early Hebrew bible, embodies this idea, and viewing
punishment as paying back what is due is the retribution described by
Mill. Mill sought to reconcile
retaliative justice with utilitarianism arguing that the natural impulse to
retaliate is moralized as a sentiment of justice by confining it to those cases
where the injury is to society at large and where retaliative justice has a
useful deterrent function. However,
although the duty of reciprocity may spring from our recognition of other
humans, just as much as ourselves, as persons with interests and claims
deserving of respect, we cannot infer from that a duty to attack their
interests whenever they attack either our own or even those of society at
large..
But we may wonder at this point what actually constitutes
a just rule or practice. We know
Aristotle respected the law-bound decision as the work of passionless reason,
he believed, nonetheless that because legislators could never foresee all the
cases that would fall under a rule, it must be too rigid to do justice on every
occasion. Recall that the equity
jurisdiction of the English Court of Chancery grew up as a way of providing
discretionary remedies where none was to be had in law. Those who opposed such relief from the rigors
of strict application of the law, often scorned the courts of Chancery, but
saying that the relief in Chancery was “measured by the length of the
Chancellor’s foot”, suggesting a degree of capriciousness about how equity,
amid the requirements of the rule of law, was actually achieved. Again in some branches of law judges rely on
standards rather than strict rules and precedents, enjoying, in effect, wide
discretion or the law authorizes administrators to decide cases on their merits
in the light of very general canons of policy, subject only to procedural safeguards
of impartiality. The ancient practice of
casuistry
may be the means of discovering how to elude the dead hand of the past
(precedent) in particular cases, and afford relief from an otherwise harsh
historical rule.
We will try to understand how U.S. court practice, both and the federal and
state levels operates to preserve the tradition of fair and impartial
imposition of justice. One rule of
practice that is claimed by its proponents is referred to by lawyers and judges
as stare
decisis which some of you may already have encountered in courses on
constitutional law or political science.
Literally translated from the Latin, it means something like “let the
decision stand,” although there are variations on this translation. Black’s Law Dictionary translates it as “to
abide by, or adhere to, decided cases.”
In an extended entry of quotations from cases in the U.S. state courts
that have addressed the issue of whether to follow precedent in a given case. I repeat some of them here to give you the flavor
of the doctrine as articulated by judges:
“Policy of courts to standby precedent, and not to
disturb settled points....Doctrine, that, when court has once laid down a
principle of law as applicable to a certain state of facts, it will adhere to
that principle and apply it to all future cases, where facts are substantially
the same, regardless of whether the parties and property are the same...Under
the doctrine a deliberate or solemn decision of court made after argument on
question of law fairly arising in the case, and necessary to its determination,
is an authority, or binding precedent in the same court, or in other courts of
equal or lower rank in subsequent cases where the very point is again in
controversy...Doctrine is one of policy, grounded on theory that security and
certainty require that accepted and established legal principle, under which
rights may accrue, be recognized and followed, thought later found to be not
legally sound, but whether previous holding of court shall be adhered to, modified,
or overruled is within court’s discretion under circumstances of case before
it...Under the doctrine, when point of law has been settled by decision, it
forms precedent which is not afterwards to be departed from, and, while it
should ordinarily be strictly adhered to, there are occasions when departure is
rendered necessary to vindicate plain,
obvious principles of law and remedy continued injustice. The doctrine is a salutary one, and should
not ordinarily be departed from where the decision is of longstanding and
rights have been acquired under it, unless considerations of public policy
demand it....The doctrine is limited to actual determinations in respect to
litigated and necessarily decided questions, and is not applicable to dicta
or obiter
dicta. (These last two Latin terms refer to statement’s in a court’s
opinion that are regarded as gratuitous and not strictly necessary to the
decision of the factual dispute before it – characterization by a subsequent
court of a previous court’s statements as dicta frequently provide the
subsequent court with the groundwork to ignore as inapposite the prior
decision.)
As you can readily see from these excerpted comments, all
made by judges in the ordinary course of their business, their main line of work, the doctrine is very conservative, in the
sense of being dedicated to the preservation of the status quo. This is not all bad, of course, and tends to
assist the maintenance of stability and predictability in the public affairs of
our republic. However, it also tends to
stifle innovation and preserve questionable practices long after their
usefulness or public support has disappeared.
One of the most famous examples of this is the doctrine of “separate but
equal” announced by the case of Plessy v. Ferguson, a case
involving the inability of a person of color to obtain service in a dining car
on a train in interstate commerce, or to obtain access to a sleeping car on
such a train reserved for “white” people.
The authority of the Plessy case, using the doctrine of stare
decisis supported racial segregation in public facilities for 60 years
before being finally overruled by the United States Supreme Court in Brown
v. Board of Education in 1954.
I will suggest that we read the Plessy decision as a prime
illustration of how the conservative nature of our judicial system can be used
to preserve unjust practices. We will
also read Justice John Marshall Harlan’s eloquent dissent in the case, in which
two of the great phrases that would ground the civil rights movement, “badges
of servitude,” and the “colorblind constitution” were first articulated. They were drawn by Justice Harlan from the
brief on appeal written by Albion Tougee, one of the first white civil rights
advocates, in 1896. If time permits, we
will also consider the elegant thesis of Professor Andrew Kull and others that Brown
and Plessy
as historical developments have been drastically misconstrued and that such
misreading has had equally disastrous consequences for social and economic
progress of racial minorities in our society.
While we can cite many instances of preserved injustice
in our legal system and codes of social practice, it is much more difficult to
articulate rules of general application that will guarantee a just
society. Moral reciprocity – doing to
others as one would have them do to oneself (the Biblical “Golden Rule”) is
closely linked to impartiality, for to be impartial between oneself and someone
else would mean doing nothing to profit at his or her expense. From this follow ideas such as a fair wage, a
just price, and a fair exchange.
Aristotle referred to such notions as “commutative justice” which he
opposed to exploitation and profiteering (in its most pejorative usage). It is very difficult to evaluate benefits
exchanged, and we ordinarily leave that to the marketplace or other
conventional standard, although marketplace analogies are widespread today and
even have been espoused as a source of the rhetoric to be employed in meting
out justice. This latter notion has been
proselytized successfully by Richard A. Posner, one of the three Circuit Judges
of the United States Court of Appeals for the 7th Circuit, sitting
in Chicago, where Judge Posner is also a professor of law at the University of
Chicago. We will examine selections from
Judge Posner’s prolific writings to get a better idea of how ideas of economics
of justice have become pervasive and often controlling in the discourse about
who gets what and why. For example, how
can one evaluate domestic service, or waitressing or housekeeping in hotels
without taking for granted a wage structure in which types of work are roughly
graded according to accepted standards like skill and responsibility, rather
than needs of the person performing the tasks?
In this regard, we will also briefly examine selections from Nickel
and Dimed: On Not Getting By in America, by Barbara Ehrenreich, in
which Ms. Ehrenreich, a successful writer and journalist, abandons her
comfortable life and seeks self sufficiency by becoming, successively, and then
cumulatively to survive, a waitress, a hotel housekeeper, a Wal-Mart
salesperson, and professional house cleaner.
Without working seven days a week and frequently 18 hours a day, she was
unable to sustain herself in what she regarded as a decent standard of living
for all persons in an affluent society.
Of course, justice considered as reciprocity is often
believed to require returning evil for evil as much as good for good. This application of the lex talionis has recently
become most painfully familiar to us in the aftermath of the horror of the
catastrophes of September 11 in New York, Washington and Pennsylvania. President Bush quickly adopted and adapted to
the rhetoric of evil in the characterization of the perpetrators, their
presumed leaders and the states harboring them, and in the coupling of such
characterizations with the declarations that such people and states will be
“brought to justice” by the military might and determination of the U.S. To that end, he issued the Executive Order of
November 13, 2001 establishing the process of trial by Military Tribunal for
those detained and accused of terrorist activities. One of the principal focal points of our
study this semester will be its terms and its application in the context of our
accepted notions of criminal procedure under the U.S. Constitution. A copy of the text of the Executive Order
accompanies this introductory essay as part of your course materials.
To return to the Lex Talionis we should note that its
underlying thesis in justice is that it means “paying back” what is due. Thus enters in contemporary newspeak, the
word “payback,” in its retaliatory sense, now acceptable usage in all walks of
rhetorical life today. John Stuart Mill
sought to reconcile retaliative justice with utilitarianism, arguing that the
natural impulse to retaliate is moralized as a sentiment of justice by
confining it to those cases where the injury is to society at large and
where retaliative justice has a useful deterrent function. We will attempt to focus on the conjunctive
requirement Mill would impose, that of the deterrent effect of much of our
criminal ordinances, especially in capital and drug cases. But even assuming a duty of reprocity in such
cases, we cannot assume that though Kant, Mill and others would require us to
respect other humans, just as ourselves, as persons with interests and
honorable claims to be protected, we cannot therefore infer a duty to attack
others when ever they attack our own or even those of society at large. We will advert to this argument when we come
to a fuller discussion of punishment as a necessary part of the discourse of
Justice in our society and the extent to which our social contract requires it.
Given the uncertainties and shifting grounds already
referred to, what can we establish as the criteria of a just rule or
practice? Legislation is some areas
attempts an answer in specialized cases, such as the Uniform Code of Military
Justice, or the Administrative Procedure Act, which empowers some government
agencies, such as the Securities Exchange Commission to have important
investigative and quasi-judicial powers, and prescribes certain rules for their
exercise, often which themselves give the agencies power to prescribe and enforce
rules. In addition, there are
statutorily prescribed non-judicial forums for the resolution of disputes, such
as arbitration which is often governed by the Federal Arbitration Act and by
similar acts adopted by the states, and also provisions under a variety of
state laws for mediation of disputes, sometimes as a prerequisite to access to
the courts for resolution of the dispute if mediation fails. There are many who are philosophically
skeptical of extra- or non-judicial standards of justice, saying that other
standards of justice are expressions of emotion, more like “banging on a table”
for attention. Plato has Thrasymachus
argue that justice is simply the will of the more powerful, and Marx held that
justice at any given time consists in the rules administered by the dominant
economic class. Hobbes said it was
useless to complain of injustice to a sovereign legislator, because justice was
what the sovereign said it was.
Those of you who have taken my course in contemporary
ethics are familiar with my emphasis on religious traditions as sources of
moral principles, and this I believe no less to be true in searching for
standards “behind” standards of justice.
References in both pagan and post Christian literature frequently allude
to “immutable laws of heaven” as mentioned in Sophocles’ Antigone, for
example. In Stoic philosophy and in
later Roman jurisprudence this becomes a universal law of nature, equally
accessible to all men through reason.
Aquinas Christianized this theory by treating human law as the local
application of natural law, which was itself an expression of God’s rational
will guiding the universe. By the early
17th century Hugo Grotius argued that even if one could suppose that
God did not exist, one would still be bound by the law of nature, since it
derived from the two human qualities of sociability and rationality. Our need of society dictates the minimum
conditions for social harmony. Thus, Locke
and Rousseau and many others came to regard so-called natural law as a universal
test of the justice of any positive law created by humans, it being assumed
that the source of natural law was ultimately human nature, given by the deity,
in whatever form that might take.
In addition to such classical natural law theories, there
is the idea announced by Glaucon in Plato’s Republic that justice is
“conventional,” that is, the subject of consensus reached by a society which is
to be governed by its application. Hume,
among many others, pointed out that it was no easier to demonstrate the
existence of this “compact” than it was to establish pre-existent natural law
norms, but in modern times Rawls has changed the terms of discussion by
pointing out that some principles of justice are those which humans might
agree upon, as being seen generally in their best interests, even though
particular applications might not necessarily always be in their individual
best interests. Hume also agreed that
this was the source of general agreement on moral standards if not rules, on
the ground that humans would find them useful or even necessary to a
functioning society. Thus, Hume is seen
to be utilitarian in his approach, just as Rawls is seen to be ameliorating
utilitarianism by his formula for justice as fairness, since the greatest good
for the greatest number is not always fair to the minority.
What also meets with general agreement is the idea that
doing justice means treating equals equally and unequal according to their
relevant inequalities. Disagreements
always arise over what particular rule of relevance is to be applied. Distributions (e.g., income, tax bearing,
social service benefits, military service requirements, and voting
arrangements) conceivably may be organized on any of at least three principles
of justice: arithmetic equality; merit
(or just desert); or need. Where no good
ground can be shown for treating people differently they clearly ought to be
treated alike. This is the procedural
presupposition of justice. The principal
“one person, one vote,” implies that there are no differences between persons
that would justify a different scheme of franchise allocation. This is not the case with progressive
taxation, where the capacity to pay is taken as a ground for discrimination. Even in voting, cumulative voting is a means
of alleviating the oppression of a “permanent” minority, while not
discriminatory, does allow for the alternative use of voting power to level the
playing field.
Earnings or other rewards for one’s ability to produce
something generally desired can be satisfied proportionally according to
production, by quantity and/or merit.
Aristotle favored prizes for athletic ability and financial compensation
according to skill, responsibility, industriousness and similar factors. Those discriminatory criteria can largely be
justified only on grounds of general utility of the public interest.
Some thinkers have advocated that distribution according
to works should be replaced by needs criteria.
Michael Ignatieff, in his early work The Needs of Strangers
makes a powerful case for the need for love, generally, and related
considerations which render needs subject to the criticism of more or less
frivolous desire, that that needs with a strong criteria should be our first
priority, for ourselves and all other members of the human community. But need criteria presupposed some standard
condition that would imply hardship if the need were not met. This is not the standard Ignatieff has in
mind, nor was it the standard Marx proposed.
Some other standard of need that incorporates a standard not based on
hardship or abject deprivation, but upon some standard of human dignity is what
is argued for here.
Finally, there are those who think of justice not so much
in terms of rules of conduct, but as qualities possessed by the person of
integrity, and who lives in accordance with such principles, thus satisfying
both Aristotle, who asked the question “what kind of person should I be?” and
Socrates, who asked “What kind of life should I live? Harmonizing the answers to those questions
forms the most basic part of our constitutive discourse about the elusive, but
vital idea and ideal, of justice.
[1] In this Introduction, I have followed the outline and included some material from Stanley Benn’s article in Vol. 3 of The Encyclopedia of Philosophy, 1968